exv10w21



 






Exhibit 10.21




EMPLOYMENT AGREEMENT




     EMPLOYMENT AGREEMENT (this “Agreement”), effective as of January 15, 2006 (the “Effective
Date”), between Edward Johnson (“Executive”) and Smart Move, LLC, a Colorado Limited Liability
Company (“Employer”).



     In consideration of the premises and the mutual covenants hereinafter set forth and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:



     1. EMPLOYMENT OF EXECUTIVE.



     Employer hereby agrees to employ Executive, and Executive hereby agrees to be and remain in
the employ of Employer, upon the terms and conditions hereinafter set forth.



     2. EMPLOYMENT PERIOD; EMPLOYMENT YEAR.



          2.1 EMPLOYMENT PERIOD. Subject to earlier termination as provided in Section 5, the term of
Executive’s employment under this Agreement shall commence as of the date hereof and shall continue
until September 30, 2011 (the “Initial Employment Period”). Unless either party gives notice of
non-renewal at least ninety (90) days prior to the expiration of the Initial Employment Period or
any extension thereof, the term of this Agreement shall be extended for an additional one (1) year
period beyond the end of the Initial Employment Period, or the end of any extension thereof, as the
case may be (the Initial Employment Period and any extension thereof is hereafter referred to as
the “Employment Period”).




          2.2 EMPLOYMENT YEAR. Each 12-month period ending on September 30 shall be hereinafter
considered an “Employment Year.”




     3. DUTIES AND RESPONSIBILITIES; PLACE OF PERFORMANCE.



          3.1 DUTIES AND RESPONSIBILITIES. During the Employment Period, Executive shall have the
titles of Director and Chief Financial Officer of the Employer. Executive shall devote
substantially all of his business time to the Employer. Executive shall be responsible for the
affairs of the Employer and its subsidiaries in pursuit of the Employer’s Business. Executive
shall perform such duties, consistent with his status as Chairman of the Board and Chief Executive
Officer of Employer, as he may be assigned from time to time by Employer’s Board of Directors (the
“Board”).




          3.2 PLACE OF PERFORMANCE. In connection with his employment during the Employment Period, the
Executive shall be based at the Employer’s current principal offices in Greenwood Village, CO or
such other principal offices as may be established in the future by the Board. Executive shall
travel to such principal office, as necessary, from his home at the expense of the Executive.
Employer shall maintain an office for the Executive in the greater Denver Metro area.




 









 








     4. COMPENSATION AND RELATED MATTERS.



          4.1 BASE SALARY. Employer shall pay to Executive a base salary at the rate of $ 175,000
per annum, subject to increase at the discretion of the Board (the initial base salary,
including any Board approved increase thereof, the “Base Salary”), payable semi-monthly on the
15th and the last day of the month. Beginning September 30, 2006, Executive’s salary will be
reviewed and increased as determined in the sole discretion of the Board of Directors
Compensation Committee (“Compensation Committee”). The Board will consider increases in
Executive’s Base Salary no less frequently than annually, and, when approved by the Board, any
such increase shall become the new Base Salary under this Agreement.




          4.2 ANNUAL BONUS. Schedule A and Schedule B hereto sets forth certain
performance objectives (each a “Milestone”) for the Employer to achieve during each
Employment Year during the Initial Employment Period. To the extent the relevant Milestone
for any Employment Year is achieved, Executive shall receive a cash bonus of $110,000 or 50%
of the Base Salary for that Employment Year, which ever is greater (the “Target Bonus”).
Executive’s bonus in any Employment Year may be increased above the Target Bonus if, in the
opinion of the Board, such increase is appropriate to reward Executive’s performance for
such year (the Target Bonus, together with any increase, being hereinafter referred to as
the “Bonus”). Except as otherwise set forth in Section 6 hereof, if any Milestone for the
Employment Year in which the Employment Period terminates has been achieved prior to such
termination, Executive shall be entitled to receive the full amount of the Target Bonus.





          (a) Schedule A contains Milestones expressed in terms of the Stock Price of Employer.
As used herein, “Stock Price” shall mean the average of the closing bid prices of the Common
Stock (“Common Stock”), par value $7.50 per share, of Employer, as reported by the principal
market where the Common Stock is then traded, over the ten (10) trading days preceding
September 30 in each Employment Year (as adjusted for stock splits, stock dividends,
reclassification or other similar events). If, at the end of the particular Employment
Year, the Employer’s Stock Price is equal to or exceeds one or more of the prices specified,
Executive shall be entitled to the percentage of the Target Bonus set forth next to the
highest such price achieved. Any Bonus earned as a result of achieving the Stock Price
target shall be paid to Executive within three business days of the end of the Employment
Year in which the Milestone is achieved. Total maximum bonus for Schedule A Milestones
obtained is equal to 50% of the current Employment Year’s “Target Bonus”.




          (b) Schedule B contains Milestones expressed in terms of the number of moves completed
in any Employment Year. If, at the end of the particular Employment Year, the number of
moves completed is equal to or exceeds one or more of the target numbers specified,
Executive shall be entitled to the percentage of the Target Bonus set forth next to the
highest such number of moves achieved. Any Bonus earned as a result of achieving the number
of completed moves target shall be paid to Executive within three business days of the end
of the Employment Year in which the Milestone is



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achieved. Total maximum bonus for Schedule B Milestones obtained is equal to 50% of
the current Employment Year’s “Target Bonus”.




          (c) Achievement of multiple Milestones in any Employment Year shall not entitle
Executive to more than 100% of the total Target Bonus for such Employment Year, unless the
Board increases the Bonus with respect to such Employment Year. The maximum aggregate
Target Bonus during the Initial Employment Period shall be three (3) times the Target Bonus,
unless the Board increases the Bonus with respect to one or more Employment Years.




          (d) In the event of a Change in Control (as defined below) of Employer, Executive shall
be immediately entitled to the full amount of the Target Bonus with respect to any
Employment Years remaining in the Employment Period. As used in this Agreement, the term
“Change in Control” means (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of the assets
of the Employer; (ii) any sale, lease exchange or other transfer (in one transaction or a
series of related transactions) of shares of capital stock of the Employer such that any
person or group (other than the holders generally of the Employer’s capital stock
immediately prior to such transaction or series of transactions) shall become the owner,
directly or indirectly, beneficially or of record, of shares representing more than
thirty-three percent (33%) of the aggregate ordinary voting power represented by the issued
and outstanding voting securities of the Employer; or (iii) any merger, consolidation,
recapitalization, acquisition or similar transaction (other than any such transaction
involving only the Employer and/or one or more wholly owned subsidiaries of the Employer) in
which the outstanding voting securities of the Employer are converted into or exchanged for
cash, securities or other property, such that immediately after such transaction any person
or group (other than the holders generally of such capital stock immediately prior to such
transaction or series of transactions) shall become the owner, directly or indirectly ,
beneficially or of record, of shares representing more than twenty percent (20%) of the
aggregate ordinary voting power represented by the issued and outstanding voting securities
of the Employer.



          4.3 BONUS FOR STOCK LISTING AND PAST SERVICES. Executive shall receive a $75,000 cash bonus
immediately upon the Employer’s Common Stock being listed on the NASDAQ Stock Market, the American
Stock Exchange or the New York Stock Exchange and for services previously performed by Executive
for the Employer;




          PROVIDED, HOWEVER, that such listing shall have occurred during the Initial Employment Period
and that Executive’s employment hereunder shall not have been terminated for “Cause” (as defined in
Section 5.2 below) prior to the date of such listing.




          4.4 OTHER BENEFITS. During the Employment Period, subject to, and to the extent Executive is
eligible under their respective terms, Executive shall be entitled to receive

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such fringe benefits as are, or are from time to time hereafter generally provided by Employer
to Employer’s senior management employees or other employees (other than those provided under or
pursuant to separately negotiated individual employment agreements or arrangements) under any
pension or retirement plan, disability plan or insurance, group life insurance, medical and dental
insurance, accidental death and dismemberment insurance, travel accident insurance or other similar
plan or program of Employer. Employer shall provide short-term and long-term disability insurance
for Executive which provides benefits equal to at least 60% of Base Salary. Executive’s Base
Salary shall (where applicable) constitute the compensation on the basis of which the amount of
Executive’s benefits under any such plan or program shall be fixed and determined.




          4.5 EXPENSE REIMBURSEMENT. Employer shall reimburse Executive for all business expenses
reasonably incurred by him in the performance of his duties under this Agreement upon his
presentation of signed, itemized accounts of such expenditures, all in accordance with Employer’s
procedures and policies as adopted and in effect from time to time and applicable to its senior
management employees.




          4.6 VACATIONS. Executive shall be entitled to 15 days paid vacation for each Employment Year
during the Employment Period, in accordance with the Employer’s vacation policy as in effect from
time to time. The Executive shall also be entitled to paid holidays and personal days in
accordance with the Employer’s practice with respect to same as in effect from time to time.




          4.7 EQUITY INCENTIVES. In order to provide further incentive to Executive and align the
interests of Executive with those of the stockholders of Employer, Employer shall grant to
Executive equity incentives consisting of shares of Common Stock and options to purchase shares of
Common Stock (“Options”).





          (a) SHARE GRANT. Employer shall grant to the Executive a total of 75,000 share units
of Smart Move LLC when the authorized share units become available to the Employer. These
shares would be subject to the Underwriters agreed upon lock up requirements.




          (b) OPTION AWARDS. Employer shall grant to the Executive Options to purchase 75,000
shares of Common Stock to be issued only if the Executive can achieve certain performance
objectives. All Options granted pursuant to this paragraph shall:




          (i) be subject to an option agreement containing terms substantially similar to
the terms generally provided in the option agreements of the Employer’s other senior
managers (except as otherwise modified herein);




          (ii) have a term of 10 years from the date of grant;




          (iii) shall be fully vested and be exerciseable as follows:



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	 	a.	 	At the end of
Employment Period one, at September, 30, 2006, Options
with respect to 25,000 shares, with an exercise price
equal to $12.00, shall be issued vest and be
exerciseable immediately; only if the company has
reached the performance objective of 4,800 booked moves.
	 
	 	b.	 	At the end of
Employment Period two, at September, 30, 2007, Options
with respect to 25,000 shares, with an exercise price
equal to $15.00, shall be issued vest and be
exerciseable immediately; only if the company has
reached the performance objective of 9,000 booked moves.
	 
	 	c.	 	At the end
of Employment Period three, at September, 30, 2008,
Options with respect to 25,000 shares, with an exercise
price equal to $17.00, shall be issued vest and be
exerciseable immediately; only if the company has
reached the performance objective of 12,000 booked
moves.






     PROVIDED, HOWEVER, that upon a Change of Control, all Options that have not yet
vested and become exerciseable shall be deemed to have vested and have become
exerciseable as of the time immediately preceding such Change of Control;




          (iv) shall provide for cashless exercise of such Options;




          (v) be issued under a qualified omnibus long-term incentive plan (a “Plan”)
that will provide for Incentive Stock Options pursuant to Internal Revenue Code
(“Code”) Section 422, non-qualified stock options and other forms of long-term
incentives. If the Employer does not have a Plan applicable to the Executive or if
an existing Plan does not provide for the foregoing terms or if sufficient shares
are not available for grant under an existing Plan, Employer undertakes to implement
a Plan to provide for the issuance of Executive’s Options. Failure of the Employer
to implement such a Plan shall not prevent Executive’s right to receive his Options
and he may elect, in his sole discretion, to receive Options not subject to a Plan.




          (c) From time to time, the Board may, in its discretion, grant additional Options to
Executive, on such terms as the Board determines.



     5. TERMINATION OF EMPLOYMENT PERIOD.



          5.1 TERMINATION WITHOUT CAUSE; VOLUNTARY TERMINATION BY EXECUTIVE. Employer may, by notice to
Executive at any time during the Employment

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Period, terminate the Employment Period without Cause (as defined below). Executive may, by
notice to Employer at any time during the Employment Period, voluntarily resign from the Employer
and terminate the Employment Period. A termination under this section shall be effective
immediately.




          5.2 BY EMPLOYER FOR CAUSE. Employer may, at any time during the Employment Period, by notice
to Executive, terminate the Employment Period for “Cause” (as defined below) effective immediately,
except as otherwise provided below. The notice shall set forth in reasonable detail the basis for
such termination. In the event that it is possible for the Executive to cure or correct the
circumstances set forth in the notice, the termination shall not be effective until the date that
is thirty (30) days following the date on which such notice is given and the circumstances set
forth in the notice shall not constitute “Cause” if within 30 days of such notice, Executive cures
or corrects such circumstances. The Employer shall have “Cause” to terminate the Executive’s
employment hereunder upon the Executive’s:





          (a) fraud, embezzlement, or any other illegal act committed intentionally by the
Executive in connection with the Executive’s duties as an executive of the Employer or any
subsidiary or affiliate of the Employer which causes or may reasonably be expected to cause
substantial economic injury to the Employer or any subsidiary or affiliate of the Employer,




          (b) conviction of any felony which causes or may reasonably be expected to cause
substantial economic injury to the Employer or any subsidiary or affiliate of the Employer,
or




          (c) willful or grossly negligent commission of any other act or failure to act which
causes or may reasonably be expected (as of the time of such occurrence) to cause
substantial economic injury to or substantial injury to the reputation of the Employer or
any subsidiary or affiliate of the Employer, including, without limitation, any material
violation of the Foreign Corrupt Practices Act, as described herein below. An act or
failure to act on the part of Executive shall be considered “willful” if done, or omitted to
be done, by Executive in bad faith or without a reasonable belief that the act or omission
was in the best interest of Employer.



          5.3 BY EXECUTIVE FOR GOOD REASON. Executive may, at any time during the Employment Period by
notice to Employer, terminate the Employment Period under this Agreement for “Good Reason” (as
defined below) effective immediately. For the purposes hereof, “Good Reason” means any of the
following without Executive’s consent: (A) subject to Section 3 above, a material and adverse
change in the nature and scope of Executive’s authority and duties from those exercised or
performed by Executive immediately after the Effective Date; (B) a material breach of this
Agreement by Employer (including, but not limited to, failure to pay any amount due to Executive
when due, diminution of Executive’s duties and responsibilities or a change in Executive’s place of
performance);

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          PROVIDED, HOWEVER, that the circumstances set forth in this Section 5.3(A) and (B) will not be
Good Reason if within 30 days of notice by the Executive to the Employer, Employer cures such
circumstances.




          5.4 DISABILITY. During the Employment Period, if, as a result of physical or mental
incapacity or infirmity, Executive shall be unable to perform his duties under this Agreement for
(i) a continuous period of at least 120 days, or (ii) periods aggregating at least 180 days during
any period of 12 consecutive months (each a “Disability Period”), and at the end of the Disability
Period there is no reasonable probability that Executive can promptly resume his duties hereunder,
Executive shall be deemed disabled (the “Disability”) and Employer, by notice to Executive, shall
have the right to terminate the Employment Period for Disability at, as of or after the end of the
Disability Period. The existence of the Disability shall be determined by a reputable, licensed
physician. The parties shall attempt to agree on such a physician. In the event that the parties
are unable to so agree, such physician shall be selected by an arbitrator provided by the American
Arbitration Association in New York, New York. Executive shall cooperate in all reasonable
respects to enable an examination to be made by such physician.




          5.5 DEATH. The Employment Period shall end on the date of Executive’s death.




     6. TERMINATION COMPENSATION.



          6.1 TERMINATION WITHOUT CAUSE BY EMPLOYER OR FOR GOOD REASON BY EXECUTIVE. If the
Employment Period is terminated by Employer without Cause or by Executive for Good Reason, Employer
will pay to Executive a lump sum payment equal to one full year of Executive’s then Base Salary.
Employer shall also continue to provide the Executive with all employee benefits and perquisites
which he was participating in or receiving at the effective date of termination (or if greater, at
the end of the prior year) for two years. If such benefits cannot be provided under the Employer’s
programs, such benefits and perquisites will be provided on a tax effective basis on an individual
basis to the Executive.




          6.2 TERMINATION BY REASON OF DEATH. If the Employment Period is terminated by death, pursuant
to the provisions of Section 5.5, Employer shall pay to Executive’s estate, semi-monthly, his
current Base Salary for a period of up to one year from the date of termination.




          6.3 CERTAIN OTHER TERMINATIONS. If the Employment Period is terminated by Employer pursuant
to the provisions of Sections 5.2 or 5.4, Employer shall pay to Executive, within thirty (30) days
of the effective date of termination, Executive’s Base Salary through the date of termination. If
the date of termination occurs after a Milestone has been achieved, Employer shall also pay to
Executive, when due pursuant to provisions of Section 4.2 hereof, the Bonus for such Employment
Year. Employer shall have no obligation to continue any other benefits provided for in Section 4
past the date of termination.




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          6.4 NO OTHER TERMINATION COMPENSATION. Executive shall not, except as set forth in this
Section 6, be entitled to any compensation following termination of the Employment Period.




          6.5 MITIGATION OF DAMAGES. In the event of any termination of the Executive’s employment by
the Employer, the Executive shall not be required to seek other employment to mitigate damages, and
any income earned by the Executive from other employment or self-employment shall not be offset
against any obligations of the company to the Executive under this Agreement. The Employer’s
obligations hereunder and the Executive’s rights to payment shall not be subject to any right of
set-off, counterclaim or other deduction by the Employer not in the nature of customary
withholding, other than in any judicial proceeding or arbitration.




     7. PARACHUTE PAYMENTS



     (a) If it is determined (as hereafter provided) that by reason of any payment or Option
vesting occurring pursuant to the terms of this Agreement (or otherwise under any other agreement,
plan or program) upon a Change in Control (collectively, a “Payment”), the Executive would be
subject to the excise tax imposed by Code Section 4999 (the “Parachute Tax”), then the Executive
shall be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount
such that, after payment by the Executive of all taxes (including any Parachute Tax) imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the
Parachute Tax imposed upon the Payment.



     (b) Subject to the provisions of Section 7(a) hereof, all determinations required to be made
under this Section 7, including whether a Parachute Tax is payable by the Executive and the amount
of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall be made by the nationally recognized firm of certified public accountants (the
“Accounting Firm”) used by the Employer prior to the Change in Control (or, if such Accounting Firm
declines to serve, the Accounting Firms hall be a nationally recognized firm of certified public
accountants selected by the Executive). The Accounting Firm shall be directed by the Employer or
the Executive to submit its preliminary determination and detailed supporting calculations to both
the Employer and the Executive within 15 calendar days after the determination date, if applicable,
and any other such time or times as may be requested by the Employer or the Executive. If the
Accounting Firm determines that any Parachute Tax is payable by the Executive, the Employer shall
pay the required Gross-Up Payment to, or for the benefit of, the Executive within five business
days after receipt of such determination and calculations. If the Accounting Firm determines that
no Parachute Tax is payable by the Executive, it shall, at the same time as it makes such
determination, furnish the Executive with an opinion that he has substantial authority not to
report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting
Firm as to the amount of the Gross-Up Payment shall be binding upon the Employer and the Executive
absent a contrary determination by the Internal Revenue Service or a court of competent
jurisdiction; provided, however, that no such determination shall eliminate or reduce the
Employer’s obligation to provide any Gross-Up Payments that shall be due as a result of such
contrary determination. As a result of the uncertainty in the application of Code Section 4999 at
the time of any determination by the



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Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made
by the Employer should have been made (an “Underpayment”), consistent with the calculations
required to be made hereunder. In the event that the Employer exhausts or fails to pursue its
remedies pursuant to Section 7(f) hereof and the Executive thereafter is required to make a payment
of any Parachute Tax, the Executive shall direct the Accounting Firm to determine the amount of the
Underpayment that has occurred and to submit its determination and detailed supporting calculations
to both the Employer and the Executive as promptly as possible. Any such Underpayment shall be
promptly paid by the Employer to, or for the benefit of, the Executive within five business days
after receipt of such determination and calculations.



     (c) The Employer and the Executive shall provide the Accounting Firm access to and copies of
any books, records and documents in the possession of the Employer or the Executive, as the case
may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting
Firm in connection with the preparation and issuance of the determination contemplated by Section
7(b) hereof.



     (d) The federal tax returns filed by the Executive (or any filing made by a consolidated tax
group which includes the Employer) shall be prepared and filed on a basis consistent with the
determination of the Accounting Firm with respect to the Parachute Tax payable by the Executive.
The Executive shall make proper payment of the amount of any Parachute Tax, and at the request of
the Employer, provide to the Employer true and correct copies (with any amendments) of his federal
income tax return as filed with the Internal Revenue Service, and such other documents reasonably
requested by the Employer, evidencing such payment. If prior to the filing of the Executive’s
federal income tax return, the Accounting Firm determines in good faith that the amount of the
Gross-Up Payment should be reduced, the Executive shall within five business days pay to the
Employer the amount of such reduction.



     (e) The fees and expenses of the Accounting Firm for its services in connection with the
determination and calculations contemplated by Sections 7(b) and (d) hereof shall be borne by the
Employer. If such fees and expenses are initially advanced by the Executive, the Employer shall
reimburse the Executive the full amount of such fees and expenses within five business days after
receipt from the Executive of a statement therefore and reasonable evidence of his payment thereof.



     (f) In the event that the Internal Revenue Service claims that any payment or benefit received
under this Agreement constitutes an “excess parachute payment” within the meaning of Code Section
280G(b)(1), the Executive shall notify the Employer in writing of such claim. Such notification
shall be given as soon as practicable but not later than 10 business days after the Executive is
informed in writing of such claim and shall apprise the Employer of the nature of such claim and
the date on which such claim is requested to be paid. The Executive shall not pay such claim prior
to the expiration of the 30 day period following the date on which the Executive gives such notice
to the Employer (or such shorter period ending on the date that any payment of taxes with respect
to such claim is due). If the Employer notifies the Executive in writing prior to the expiration
of such period that it desires to contest such claim, the Executive shall (i) give the Employer any
information reasonably requested by the Employer relating to such claim; (ii) take such action in
connection with contesting such claim as the Employer shall



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reasonably request in writing from time to time, including without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by the Employer and
reasonably satisfactory to the Executive; (iii) cooperate with the Employer in good faith in order
to effectively contest such claim; and (iv) permit the Employer to participate in any proceedings
relating to such claim;



     PROVIDED, HOWEVER, that the Employer shall bear and pay directly all costs and expenses
(including, but not limited to, additional interest and penalties and related legal, consulting or
other similar fees) incurred in connection with such contest and shall indemnify and hold the
Executive harmless, on an after-tax basis, for and against for any Parachute Tax or income tax or
other tax (including interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses.



     (g) The Employer shall control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner and the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as
the Employer shall determine;



     PROVIDED, HOWEVER, that if the Employer directs the Executive to pay such claim and sue for a
refund, the Employer shall advance the amount of such payment to the Executive on an interest-free
basis, and shall indemnify and hold the Executive harmless, on an after tax basis, from any
Parachute Tax (or other tax, including interest and penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to such advance; and



     PROVIDED, FURTHER, that if the Executive is required to extend the statute of limitations to
enable the Employer to contest such claim, the Executive may limit this extension solely to such
contested amount. The Employer’s control of the contest shall be limited to issues with respect to
which a corporate deduction would be disallowed pursuant to Code Section 280G and the Executive
shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority. In addition, no position may be taken nor any final
resolution be agreed to by the Employer without the Executive’s consent if such position or
resolution could reasonably be expected to adversely affect the Executive unrelated to matters
covered hereto.



     (h) If, after the receipt by Executive of an amount advanced by the Employer in connection
with the contest of the Parachute Tax claim, the Executive receives any refund with respect to such
claim, the Executive shall promptly pay to the Employer the amount of such refund (together with
any interest paid or credited thereon after taxes applicable thereto);



     PROVIDED, HOWEVER, if the amount of that refund exceeds the amount advanced by the Employer,
the Executive may retain such excess. If, after the receipt by the Executive of an amount advanced
by the Employer in connection with a Parachute Tax claim, a determination is



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made that the Executive shall not be entitled to any refund with respect to such claim and the
Employer does not notify the Executive in writing of its intent to contest the denial of such
refund prior to the expiration of 30 days after such determination, such advance shall be deemed to
be in consideration for services rendered after the Date of Termination.



     8. PROFESSIONAL LIABILITY INSURANCE; INDEMNIFICATION.



          8.1 INSURANCE. The Employer will provide coverage for Executive under the Employer’s director
and officer professional liability insurance policy.




          8.2 INDEMNIFICATION. Employer shall indemnify the Executive to the fullest extent permitted
by law in effect as of the date hereof, or as hereafter amended, against all costs, expenses,
liabilities and losses (including, without limitation, attorneys’ fees, judgments, fines,
penalties, ERISA excise taxes, penalties and amounts paid in settlement) reasonably incurred by the
Executive in connection with a Proceeding. For the purposes of this section, a “Proceeding” shall
mean any action, suit or proceeding, whether civil, criminal, administrative or investigative, in
which the Executive is made, or is threatened to be made, a party to, or a witness in, such action,
suit or proceeding by reason of the fact that he is or was an officer, director or employee of the
Employer or is or was serving as an officer, director, member, employee, trustee or agent of any
other entity at the request of the Employer.





          (a) NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the Executive of
notice of the commencement of any Proceeding, the Executive will, if a claim in respect
thereof is to be made against the Employer under this Agreement, notify the Employer in
writing of the commencement thereof; but the omission to so notify the Employer will not
relieve the Employer from any liability that it may have to the Executive otherwise than
under this Agreement. Notwithstanding any other provision of this Agreement, with respect
to any such Proceeding as to which the Executive gives notice to the Employer of the
commencement thereof:




          (i) The Employer will be entitled to participate therein at its own expense;
and




          (ii) Except as otherwise provided in this Section 8.2(a)(ii) to the extent that
it may wish, the Employer, jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense thereof, with counsel satisfactory
to the Executive. After notice from the Employer to the Executive of its election
to so assume the defense thereof, the Employer shall not be liable to the Executive
under this Agreement for any legal or other expenses subsequently incurred by the
Executive in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. The Executive shall have the right to
employ the Executive’s own counsel in such Proceeding, but the fees and expenses of
such counsel incurred after notice from the Employer of its assumption of the
defense thereof shall be at the expense of the Executive unless (a) the employment
of counsel by the Executive has been authorized by the Employer, (b) the Executive
shall have reasonably concluded



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that there may be a conflict of interest between the Employer and the Executive
in the conduct of the defense of such Proceeding (which conclusion shall be deemed
reasonable if, without limitation, such action shall seek any remedy other than
money damages and the Executive would be personally affected by such remedy or the
carrying out thereof), or (c) the Employer shall not in fact have employed counsel
to assume the defense of the Proceeding, in each of which cases the fees and
expenses of counsel shall be at the expense of the Employer. The Employer shall not
be entitled to assume the defense of any Proceeding brought against the Executive by
or on behalf of the Employer or as to which the Executive shall have reached the
conclusion provided for in clause (b) above.



     9. CONFIDENTIALITY.



     Unless otherwise required by law or judicial process, Executive shall retain in confidence
during the Employment Period and after termination of Executive’s employment with Employer pursuant
to this Agreement all confidential information known to the Executive concerning Employer and its
businesses. The obligations of Executive pursuant to this Section 9 shall survive the expiration
or termination of this Agreement.



     10. NON-COMPETITION.



          10.1 GENERAL. For the duration of the Employment Period and the applicable Non-Compete Period
(as defined below), the Executive shall not directly or indirectly, engage in any Competitive
Activity (as defined below) in competition with the Employer. “Competitive Activity” shall mean:
(A) the development, providing, marketing, administration, management, or acting as a consultant in
the providing of, the principal operating business(es) of the Employer at the time of termination,
(B) the participation, directly or indirectly, in any business which is the same as or
substantially similar to or is or would be competitive with the sub-prime auto finance business of
the Employer at the time; and (C) becoming an employee, director, officer, consultant, independent
contractor, lecturer or advisor of or to, or otherwise providing services to, any business,
individual, partnership, firm, association or corporation, if the Executive’s duties relate in any
manner to the business of developing, providing, marketing, administering, managing, or acting as a
consultant in the providing of, the principal operating business(es) of the Employer at the time of
termination. Nothing herein, however, shall prohibit Executive from acquiring or holding any issue
of stock or securities of any business, individual, partnership, firm, or corporation (collectively
“Entity”) which has any securities listed on a national securities exchange or quoted in the daily
listing of over-the-counter market securities, provided that at any one time he and members of his
immediate family do not own more than five percent of the voting securities of any such Entity.
The obligations of Executive pursuant to this Section 10 shall survive the expiration or
termination of this Agreement.




          10.2 NON-COMPETE PERIOD. Upon termination of Executive’s employment hereunder, the
prohibition against Executive engaging in a Competitive Activity shall remain in effect for the
following periods (each a “Non-Compete Period”).




12









 









          (a) TERMINATION WITHOUT CAUSE BY EMPLOYER OR FOR GOOD REASON BY EXECUTIVE. If the
Employment Period is terminated by Employer without Cause or by Executive for Good Reason,
provided that all payments due to Executive from Employer have been made to Executive by
Employer, the Non-Compete Period shall be six (6) months from the effective date of
termination.




          (b) TERMINATION FOR CAUSE BY EMPLOYER OR WITHOUT GOOD REASON BY EXECUTIVE. If the
Employment Period is terminated by Employer for Cause or by Executive without Good Reason,
the Non-Compete Period shall be one year from the effective date of termination.




          (c) NON-RENEWAL. If the Employment Period ends as a result of the non-renewal of the
Agreement by either party, the Non-Compete Period shall be six (6) months from the last day
of the Employment Period.



     11. NONSOLICITATION.



     During the Non-Compete Period, Executive shall not directly or indirectly solicit to enter
into the employ of any other Entity, or hire, any of the employees of the Employer (or individuals
who were employees of the Employer within six months of termination of the Non-Compete Period).
During the Non-Compete Period, Executive shall not, directly or indirectly, solicit, hire or take
away or attempt to solicit, hire or take away (i) any customer or client of the Employer or (ii)
any former customer or client (that is, any customer or client who ceased to do business with the
Employer during the one (1) year immediately preceding such date) of the Employer or encourage any
customer or client of the Employer to terminate its relationship with the Employer without the
Employer’s prior written consent. The obligations of Executive pursuant to this Section 11 shall
survive the expiration or termination of this Agreement.



     12. NON-DISPARAGEMENT OF THE EXECUTIVE.



     The Employer shall not make any oral or written statement about the Executive which is
intended or reasonably likely to disparage the Executive or otherwise degrade his reputation in the
business or legal community.



     13. FOREIGN CORRUPT PRACTICES ACT.



     The Executive agrees to comply in all material respects with the applicable provisions of the
U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”), as amended, which provides generally that:
under no circumstances will foreign officials, representatives, political parties or holders or
public offices be offered, promised or paid any money, remuneration, things of value, or provided
any other benefit, direct or indirect, in connection with obtaining or maintaining contracts or
others hereunder. When any representative, employee, agent, or other individual or organization
associated with the Executive is required to perform any obligation related to or in connection
with this Agreement, the substance of this section shall be imposed upon such person and included
in any agreement between the Executive and any such person. Failure by the Executive to comply in
all material respects with the provisions of the FCPA (other than an



13









 







inadvertent violation on the basis of advice from counsel to the Employer that the conduct in
question is not a violation) shall constitute a material breach of this Agreement and shall entitle
the Employer to terminate the Executive’s employment for Cause.



     14. SUCCESSORS; BINDING AGREEMENT.



     This Agreement and all rights of the Executive hereunder shall inure to the benefit of and be
enforceable by Executive and Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If Executive should die
while any amounts would still be payable to him hereunder if he had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to Executive’s devisee, legatee, or other beneficiary or, if there be no such
beneficiary, to Executive’s estate.



     15. SURVIVORSHIP.



     The respective rights and obligations of the parties hereunder shall survive any termination
of this Agreement to the extent necessary to the intended preservation of such rights and
obligations.



     16. MISCELLANEOUS.



          16.1 NOTICES. Any notice, consent or authorization required or permitted to be given pursuant
to this Agreement shall be in writing and sent to the party for or to whom intended, at the address
of such party set forth below, by registered or certified mail, postage paid (deemed given five
days after deposit in the U.S. mails) or personally or by facsimile transmission (deemed given upon
receipt), or at such other address as either party shall designate by notice given to the other in
the manner provided herein.




	 	 	 	 	 
	 

	 	If to Employer:
	 	 
	 
	 	 	 	 
	 

	 	Smart Move, Inc	 	 
	 	 	 	 	 
	 

	 	5350 S Roslyn, St	 	 
	 	 	 	 	 
	 

	 	Greenwood Village, CO 80111	 	 
	 	 	 	 	 
	 

	 	Facsimile: 720-488-0199	 	 
	 	 	 	 	 
	 
	 	 	 	 
	 

	 	If to Executive:	 	 
	 
	 	 	 	 
	 

	 	Edward Johnson	 	 
	 	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	 

	 	Highlands Ranch, CO 80126	 	 
	 	 	 	 	 
	 

	 	Facsimile:                                                                                                    	 	 






          16.2 TAXES. Employer is authorized to withhold (from any compensation or benefits payable
hereunder to Executive) such amounts for income tax, social security,

14









 








unemployment compensation and other taxes as shall be necessary or appropriate in the
reasonable judgment of Employer to comply with applicable laws and regulations.




          16.3 INVENTIONS; WORK FOR HIRE. Executive hereby agrees to assign and does hereby assign all
of Executive’s right, title and interest in or to any and all ideas, concepts, know-how,
techniques, processes, inventions, discoveries, developments, works of authorship, innovations and
improvements (collectively “Inventions”) conceived or made by Executive, whether alone or in
concert with others whether patentable or subject to potential copyrights or not, except those that
the Executive developed or develops entirely on Executive’s own time without using the equipment,
supplies, facilities, or confidential or proprietary information of the Employer and provided that
such Inventions are unrelated to the business of the Employer. Executive agrees to promptly inform
and disclose all Inventions to the Employer in writing and with respect to those Inventions that
Executive is required to assign to the Employer hereunder to provide all assistance reasonably
requested by the Employer in the preservation of its interests in the Inventions (such as by
executing documents, testifying, etc.), such assistance to be provided at the Employer’s expense
but without additional compensation to the Executive. Executive agrees that any work prepared by
the Executive during the Employment Period which work is subject to assignment under this paragraph
and which is eligible for United States copyright protection or protection under the Universal
Copyright Convention the Berne Copyright Convention and/or the Buenos Aires Copyright Convention,
shall be a “work made for hire”. In the event that any such work is deemed not to be a “work made
for hire”. Executive hereby assigns all right, title and interest in and to the copyright in such
work to the Employer, and agrees to provide all assistance reasonably requested in the
establishment, preservation and enforcement of the Employer’s copyright in such work, such
assistance to be provided at the Employer’s expense but without any additional compensation to
Executive.




          16.4 GOVERNING LAW. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Colorado, without reference to the principles of conflicts
of laws therein.




          16.5 DISPUTE RESOLUTION AND ARBITRATION. In the event that any dispute arises between the
Employer and the Executive regarding or relating to this Agreement and/or any aspect of the
Executive’s employment relationship with the Employer, AND IN LIEU OF LITIGATION AND A TRIAL BY
JURY, the parties consent to resolve such dispute through mandatory arbitration under the
Commercial Rules of the American Arbitration Association, before a single arbitrator in New York,
New York. The parties hereby consent to the entry of judgment upon award rendered by the
arbitrator in any court of competent jurisdiction. Notwithstanding the foregoing, however, should
adequate grounds exist for seeking immediate injunctive or immediate equitable relief, any party
may seek and obtain such relief; provided that, upon obtaining such relief, such injunctive or
equitable action shall be stayed pending the resolution of the arbitration proceedings called for
herein. The parties hereby consent to the exclusive jurisdiction in the state and Federal courts
located in the Denver, Colorado for purposes of seeking such injunctive or equitable relief as set
forth above. Each side shall bear its own costs; however any fees assessed by the American
Arbitration Association shall be allocated by the arbitrator in his/her sole discretion.




15









 








          16.6 HEADINGS. All descriptive headings in this Agreement are inserted for convenience only
and shall be disregarded in construing or applying any provision of this Agreement.




          16.7 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same instrument.




          16.8 SEVERABILITY. If any provision of this Agreement, or any part thereof, is held to be
unenforceable, the remainder of such provision and this Agreement, as the case may be, shall
nevertheless remain in full force and effect.




          16.9 ENTIRE AGREEMENT AND REPRESENTATION. This Agreement contains the entire agreement and
understanding between Employer and Executive with respect to the subject matter hereof. No
representations or warranties of any kind or nature relating to Employer or its several businesses,
or relating to Employer’s assets, liabilities, operations, future plans or prospects have been made
by or on behalf of Employer to Executive. This Agreement supersedes any prior agreement between
the parties relating to the subject matter hereof.




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the 3rd day of
February, 2006 and as of the date first above written.



By:      /s/ Chris Sapyta

           Name: Chris Sapyta

           Title:   CEO




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SCHEDULE A




PERFORMANCE MILESTONES – STOCK PRICE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	YEAR 1 BONUS	 	YEAR 2 BONUS	 	YEAR 3 BONUS
	At 9/30/2006	 	At 9/30/2007	 	At 9/30/2008
	STOCK PRICE	 	% EARNED	 	STOCK PRICE	 	% EARNED	 	STOCK PRICE	 	% EARNED
	$7.50
	 	 	15	%	 	$	12.00	 	 	 	20	%	 	$	16.50	 	 	 	25	%
	$9.00
	 	 	30	%	 	$	13.50	 	 	 	35	%	 	$	17.00	 	 	 	50	%
	$10.50
	 	 	50	%	 	$	15.00	 	 	 	60	%	 	$	18.50	 	 	 	75	%
	$12.00
	 	 	100	%	 	$	16.50	 	 	 	100	%	 	$	20.00	 	 	 	100	%






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 YEAR 4 BONUS	 	YEAR 5 BONUS	 	YEAR 6 BONUS
	At 9/30/2009	 	At 9/30/2010	 	At 9/30/2011
	STOCK PRICE	 	% EARNED	 	STOCK PRICE	 	% EARNED	 	STOCK PRICE	 	% EARNED
	$20.00
	 	 	30	%	 	$	21.50	 	 	 	40	%	 	$	23.00	 	 	 	50	%
	$21.50
	 	 	60	%	 	$	23.00	 	 	 	65	%	 	$	24.50	 	 	 	70	%
	$23.00
	 	 	85	%	 	$	24.50	 	 	 	90	%	 	$	26.00	 	 	 	95	%
	$24.50
	 	 	100	%	 	$	26.00	 	 	 	100	%	 	$	27.50	 	 	 	100	%






17









 






SCHEDULE B




PERFORMANCE MILESTONES – COMPLETED MOVES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 YEAR 1 BONUS	 	YEAR 2 BONUS	 	YEAR 3 BONUS
	At 9/30/2006	 	At 9/30/2007	 	At 9/30/2008
	Completed	 	 	 	 	 	Completed	 	 	 	 	 	Completed	 	 
	Moves 01/2006	 	 	 	 	 	Moves 10/2007	 	 	 	 	 	Moves 10/2008	 	 
	 – 09/2006	 	% EARNED	 	– 09/2007	 	% EARNED	 	– 09/2009	 	% EARNED
	2500
	 	 	25	%	 	 	5000	 	 	 	25	%	 	 	7000	 	 	 	25	%
	2750
	 	 	50	%	 	 	5500	 	 	 	50	%	 	 	7500	 	 	 	50	%
	3000
	 	 	75	%	 	 	6000	 	 	 	75	%	 	 	8000	 	 	 	75	%
	3250
	 	 	100	%	 	 	6500	 	 	 	100	%	 	 	9000	 	 	 	100	%






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	YEAR 4 BONUS	 	YEAR 5 BONUS	 	YEAR 6 BONUS
	At 9/30/2009	 	At 9/30/2010	 	At 9/30/2011
	STOCK PRICE	 	% EARNED	 	STOCK PRICE	 	% EARNED	 	STOCK PRICE	 	% EARNED
	TBD
	 	 	25	%	 	TBD	 	 	25	%	 	TBD	 	 	25	%
	TBD
	 	 	50	%	 	TBD	 	 	50	%	 	TBD	 	 	50	%
	TBD
	 	 	75	%	 	TBD	 	 	75	%	 	TBD	 	 	75	%
	TBD
	 	 	100	%	 	TBD	 	 	100	%	 	TBD	 	 	100	%







18